Reference Question of the Week

Question: I need to find the cite to a Presidential Executive Order from 1863. I had found it referenced in an article, but my professor said I need to have a cite to the real thing.

Answer: Usually I love Presidential Executive Orders because they are published so many places and are so easy to find. They are very easy to find in Title 3 of the C.F.R., the Federal Register, and U.S.C.C.A.N. Additionally some proclamations and orders issued under specific authority of a statue are also published in the United States Code. Unfortunately, the C.F.R. and Federal Register didn’t begin publication until 1936. USCCAN bound volumes have reprinted all executive orders and proclamation since 1943. It is very unlikely that the authorizing statute, much less the proclamation, is still in force and therefore still in the U.S.C. So where do we find one that old? Proclamations, but not executive orders, back to 1846 are printed in Statutes at Large, so we looked in the Statutes at Large, and sure enough, what she wanted wasn’t really an executive order, it was a proclamation, suspending the writ of habeas corpus.

Question: I’m having trouble finding portions of the new Massachusetts Individual Health Coverage law on Westlaw even though he had a print out that mapped all the bill sections to their respective MGLA chapters and sections.

Answer: We went to MGLA in the stacks to verify that 111M was the name of a chapter. The spine on the volume says it goes up to 111K, but the pocket part contains additional new chapters. I explained that the capital letters are used to add new chapters between existing chapters in the code. 111M was there in the pocket part, where it stated that it won’t be in effect until July 1, 2007. [Note this question was researched in April of 2007 even though I didn't blog it until now.]

To find this on Westlaw we first went to the student’s Massachusetts tab and clicked on the “Find using a template” link under “Find by Citation”. Here we were able to just type in the chapter and section numbers, “111M” and “3”. This took us directly to that section which had a note at the top saying that this section is effective July 1, 2007.

The student asked why he had been unable to find this on Westlaw before. We tried branching down to this chapter using the Table of Contents tree. The last chapter before 112 was 111L, which has been in effect since 2005. I speculated that this chapter doesn’t show up in the tree because it isn’t in effect yet, and that we should check it again on July 1, 2007, to see if it shows up that day.

The student tried to use the “Find by Citation” method using the format we had discovered using the template to find “mgla 111M s 2b”, but got the result “We cannot process this FIND request because this citation may contain incorrect information or because the document is not available on Westlaw.” I had him remove the lower case b from the request and he was rewarded with two different future versions of this section, one that will be effective from July 01, 2007 to December 31, 2007, and one that will be effective January 01, 2008. It seems the lower case b refers to a subsection, rather than an intervening section.

So my new general rule when looking up a statute by citation on Westlaw is to include capital letters, but not those in lower case.

Question: Where can I get a list of law reviews that publish articles on a particular subject? I’m trying to figure out where to submit my article.

Answer: Eugene M. Wypyski’s Legal periodicals in English contains a Subject Index in addition to its Author and Geographic Indexes. The set contains information about the journals, but once journals are identified the patron should get information about where to submit the manuscript and in what form, from their mastheads. Another book that might have some limited relevance is Author's guide to journals in law, criminal justice, & criminology, edited by Roy M. Mersky, Robert C. Berring, James K. McCue. While this book provides much more detailed information about the submission process, its age (copyright 1979) makes much of it out of date. For example, the only B.C. journal listed is the B.C. Industrial and Commercial Law Review (the old name of the B.C. L. Rev.)

Question: I have this New York state case and I can't find it. It is on Lexis and Westlaw, but it is from 1963 and there is no PDF. It is a low level court, maybe just a trial court decision. I need to look at it for a cite check. Do we have it?

Answer: This case is reported in the New York Supplement. The student had looked in the New York section of the state materials, assuming this was an official reporter. The New York Supplement, like the California Reporter, is really part of the national reporter system. They are offshoots of the North Eastern Reporter and the Pacific Reporter, respectively. Because New York and California are such large states with so much litigation, West Publishing Company decided to only print the cases from their highest courts in the regional reporters, and to print the decisions of their lower courts as well as their highest courts in these new quasi-regional reporters. Some libraries shelve them with the state materials, since they only contain cases from a single state. Others, like us, shelve them with the regional reporters, since they are part of the national reporter system. Either way, a catalog check would have led the student to where this library shelves that set.

Question: What does c.v.s.g. mean? This opinion says a party filed for a writ of certiorari, c.v.s.g.

Answer: Library staff guessed that it meant something like "cert. vacated, something granted," but were wrong! After consulting Bieber's Dictionary of Legal Abbreviations and Westlaw's SCT database without finding the answer, the librarian searched for "c.v.s.g." in the TP-ALL database on Westlaw. There were several articles about Supreme Court procedure with references to CVSG – which means “calling for the views of the Solicitor General.” Mystery solved!

Question: A confused 1L asked about how to find and KeyCite an unpublished case from the SDNY. He knew the names of the parties but didn't know what it means to be unpublished, and was especially confused once he located the case since it has a U.S.P.Q. cite.

Answer: With the names of the parties it was easy to find the case in Westlaw’s DCTNY database. With the case on the screen all that was needed to KeyCite the case was to click on the KeyCite tabs. What was more difficult, was explaining to the student why unreported cases have cites. In addition to its Westlaw cite this case has a citation to U.S. P.Q. (United States Patents Quarterly), a loose-leaf service published by BNA, which reports many "unreported" cases on intellectual property issues.

The student hypothesized that maybe the case didn’t have an official cite, and that was why it was considered unreported. But there is no official reporter for U.S. District Court opinions or even opinions from the U.S. Circuit Courts of Appeals. Unreported decisions of the lower federal courts are those not published in F. Supp. or F. Supp 2d, for the District Courts, and those not reported in F., F.2d, or F.3d, for the Circuit Courts of Appeals. To add an extra layer of confusion, West actually publishes a reporter of "unreported" Circuit Courts of Appeals decisions, called the Federal Appendix.

Unreported decisions issued by the courts are binding on the parties, but can be considered less precedential – even by the issuing court. Some jurisdictions do not allow citation to unreported cases. Recent litigation questioning the constitutionality of prohibiting citation to unreported cases has brought increased interest in this issue. A recent amendment to the Federal Rules of Appellate Procedure, FRAP 32.1, requires all federal circuits to allow citation to unpublished decisions that were published on or after January 1, 2007 (i.e., federal courts may prohibit or restrict the citation of unpublished cases opinions issued before that date).

Question: Where can I find decisions of the Massachusetts Appellate Division? Are they binding on the Superior Court? Where can I get an authoritative statement that the Superior Court is not bound by Mass. App. Div. cases?

Answer: As you all know, a party to a lawsuit who believes that a matter of law (either substantive or procedural) was handled incorrectly at the trial court level is usually entitled to an appeal. In Massachusetts we have seven Trial Court Departments: the Boston Municipal Court, the District Court, the Housing Court, the Juvenile Court, the Probate and Family Court, the Superior Court, and the Land Court.

There are two appeals courts in Massachusetts, the Appeals Court and the Supreme Judicial Court. The SJC is the Commonwealth's highest appellate court. The Appeals Court is a court of general appellate jurisdiction. Most appeals from the several Departments of the Trial Court are entered initially in the Appeals Court; some are then transferred to the Supreme Judicial Court, but a majority will be decided by the Appeals Court. The Appeals Court also has jurisdiction over appeals from final decisions of two State agencies: the Appellate Tax Board and the Labor Relations Commission. Opinions of the SJC are found in the Massachusetts Reports and West’s North Eastern Reporter 1st & 2d. Opinions of the Appeals Court are found in Massachusetts Appeals Reports and West’s North Eastern Reporter 1st & 2d.

In addition to the SJC and the Appeals Court, there is an appellate division of each district court and of the Boston Municipal Court for the rehearing of matters of law arising in civil cases, in claims for compensation of victims of violent crimes, and in civil motor vehicle infractions. Any party to a cause brought in the municipal court of the city of Boston, or in any other district court, aggrieved by any ruling on a matter of law by a single justice, may, as of right, have the ruling reported for determination by the appellate division.

The decisions of the appellate division are found in Massachusetts Appellate Division Reports (Mass. App. Div.) and prior to that in Massachusetts Appellate Decisions (Mass. App. Dec.). These opinions are binding within the division from which they were issued and considered highly persuasive in the other District Courts. Decisions of the appellate division can also be appealed to the Massachusetts Appeals Court. Mass. Gen. L. Ch 231: Section 109. As there is no line of appeal from the Superior Court to the appellate division, these opinions are not binding on the Superior Courts, but may be considered persuasive.

Question: Student had a cite to: Comptroller, Federal Protection and Preservation of Wild and Scenic Rivers Is Slow and Costly (1978) from the GAO.

Answer: This GAO report is too old to be on the web, but we have some GAO reports in microfiche so we went to the Catalog of U.S. Government Publications in our online databases and searched for title, "Federal Protection and Preservation of Wild and Scenic Rivers." to find SuDoc Number GA 1.13:CED-78-96. In our microfiche collection GA 1.13:CED begins with 78-146, just a little after the fiche we need. Wondering if our main library’s collection contained this document we did a SuDoc search and discovered not only that they not only have this in fiche, but also that if we had initially done a title search in the catalog we would have found it immediately.

Question: A student working on a source collection was unable to locate volume 85 of the Indiana Law Journal which was alleged to contain two documents referenced by the author of the article the journal was editing.

Answer: Wypyski, Legal Periodicals in English, indicates that current numbering of the Indiana Law Journal begins with volume 1, 1926. That means that the current 2007 volume should be volume 81. The referenced documents were found in the current volume of the Indiana Law Journal at the page numbers provided by the author in Volume 81, Issue 4. It looks as though the volume number and issue number were added together in the original citation, perhaps indicating some confusion by the author or the author’s research assistants about the relationship between issues and volumes.

Message received via e-mail:I was hoping to get some help on a law review article that I'm helping a professor with. I am currently preparing some footnote citations according to Bluebook rules, and a few questions have come up. I hope that these questions make sense and can be answered quickly. [The questions and their answers appear below.]

Question: I am trying to use the print version of West’s Federal Practice Digest 4th to find cases under the topic Civil Rights key number 78, but the books go from the topic Children Out of Wedlock directly to Civil Rights Key Number 1001.

Answer: There is no current Civil Rights key number 78. Since 2003 the lowest key number in the topic Civil Rights has been 1001. The most likely explanation for your dilemma is that you are reading the digest topic and key number from Westlaw, and have confused the numerical equivalent of the topic Civil Rights – 78 – with the key number you are looking for under that topic. The top line of a Westlaw headnote display includes just the topic numerical equivalent and the name of the topic, but no individual key number. The next couple of lines provide information on the outline of the law under that topic to help you understand what point of law that key number stands for in that topic. The last line of the header displays the topic and key number as a single word in the form of topic number followed by the letter k followed by and the key number. For example, Civil Rights key number 1078 on Westlaw would look like 78k1078. When using a topic and key number in a Westlaw search you should use this format for greatest accuracy and precision.

Question: I need to find Virginia cases from right after the adoption of the state constitution.

Answer: The blue pages of the Bluebook provided information on the history of Virginia reports, including information that the court had been called the “Supreme Court of Appeals” and that volumes 1 and 2 of Virginia Reports were nominative reports by someone named Washington. Taking this information to our catalog we were able to link to the following electronic resource as part of the Eighteenth Century Collections online which we subscribe to:

Virginia. Supreme Court of Appeals. Reports of cases argued and determined in the Court of Appeals of Virginia. By Bushrod Washington. Vol. I-[II]. Vol. 1. Richmond, M,DCC,XCVIII[-MDCC,XCIX] [1798-1799]. 2 vols.

The two volumes are PDF images that are word searchable and are equipped with electronic tables of contents. The patron was very happy.

Question: A student was looking for a book he had used before, but he didn't know the title. He thought it came from the Ready Reference Collection and remembered it was a paperback that listed law libraries in America. The desk attendant found American Libraries Directory but that isn't paperback, so reference was called in.

Answer: When asked which law library he was looking for, the student specified he wanted the library for the U.S. Court of Appeals for the D.C. Circuit. The librarian gave the student the BNA Directory of Judges and Clerks to see if court libraries are listed in that as well. The student mistakenly opened to listing for D.C. Court of Appeals (the highest court in the D.C. local court system), and was explained the difference between the D.C. federal and local courts, which have very confusing and similar names.

It was then that the librarian realized the book we were looking for was the AALL Directory and Handbook. Unfortunately there was no library listed under U.S. Court of Appeals for the District of Columbia Circuit in the D.C. geographical listing. This made the student feel better about his failure to find the D.C. Circuit on his last use of this book when he found the other 12 U.S. Circuit Courts of Appeal. In the D.C. geographical listing there was a library called U.S. Court of Appeals Judges Library as well as a library for the U.S. Court of Appeals for the Federal Circuit. A visit to the DC Circuit Court’s website, whose URL we got from the BNA Directory, confirmed that the library associated with U.S. Court of Appeals for the District of Columbia Circuit is called the Judges Library. The student found the address he was looking for.

Question:

My nephew is a second year law student and I was hoping to buy him a gift book for Christmas. What do you suggest?

Answer:

We were unsuccessful in getting additional information from the patron about the law student’s interests, but came up with a short list of books that we thought might be good gift books, in no particular order:

Fiction Goes to Court: Favorite Stories of Lawyers and the Law Selected by Famous Lawyers, by Albert P. Blaustein (Editor), Greenwood Press, 1977, c1954.

Open Season on Lawyers: A Novel of Suspense, by Taffy Cannon, Wheeler Pub., 2003.

The New Yorker book of Lawyer Cartoons, Knopf : Distributed by Random House, 1993.

The Green Bag Almanac of Useful And Entertaining Tidbits for Lawyers : & Reader of Good Legal Writing From the Past Year, Selected by the Luminaries and Sages on Our Board of Advisers, 2006; edited by Ross E. Davies.1st (and probably only) ed. Green Bag Press, 2005.

The Oxford Dictionary of American Legal Quotations, by Fred R. Shapiro, Oxford University Press, 1993.

Amicus Humoriae: an Anthology of Legal Humor, compiled by Robert M. Jarvis, Thomas E. Baker, Andrew J. McClurg, Carolina Academic Press, c2003.

America’s Lawyer-Presidents: From Law Office to Oval Office, edited by Norman Gross; with a foreword by Justice Sandra Day O’Connor; Northwestern University Press; ABA Museum of Law, c2004.

Go East Young Man: The Early Years, Autobiography of William O. Douglas, 1st ed., New York, Random House [1974], also available in other editions.

Law and Literature: Revised and Enlarged Edition, by Richard A. Posner, Harvard University Press, 1998.

Question: Patron needed to find House Reports 73-85 and 73-152 and Senate Reports 73-41 and 73-47 (1933).

Answer: Generally our holdings of House and Senate Reports only go back to 1959. However, if these reports are part of the legislative history of some major legislation, it is possible that we could have them in a compiled Legislative history. Luckily the patron knew that these reports are part of the legislative history of the Securities Act of 1933. Checking the "Sources of Compiled Legislative History," which has been annotated with call numbers of items in our collection, we quickly determined that our library has a copy of an eleven volume "Legislative History of the Securities Act of 1933 and the Securities and Exchange Act of 1934," compiled by Jack S. Ellenberger and Ellen P. Remembering that the Compiled Legislative Histories is also on Hein Online we were quickly able to locate the same eleven volume set is electronically, providing the patron with a choice of print or online versions of the 1933 House and Senate Reports.

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